John C. Jeffries Jr., What’s Wrong with Qualified Immunity

INTRODUCTION:: Qualified immunity protects government officers from damages liability for violating constitutional rights. It does not constrain injunctions, exclusion of evidence, or the defensive assertion of rights in government enforcement proceedings. Nor does it apply to all damage actions. Officers performing legislative, judicial, and certain prosecutorial functions have absolute immunity from the award of money damages. At the other extreme, local governments, which can be sued only for constitutional violations committed pursuant to official policy or custom, have no immunity at all for such violations. But executive officers-including law enforcement officers of all sorts, prison guards, school officials, health care providers, welfare administrators, and government employers-generally enjoy qualified immunity from the award of money damages. That is true both for state and local officers sued under 42 U.S.C. § 1983 and for federal officers sued under the analogous common-law remedy of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Qualified immunity is thus the most important doctrine in the law of constitutional torts. It states the general liability rule for damage actions seeking to vindicate constitutional rights.

So what is “qualified immunity”? Qualified immunity is the doctrine that precludes damages unless a defendant has violated “clearly established” constitutional rights. More fully, damages are barred if “a reasonable officer could have believed” his or her actions to be lawful “in light of clearly established law.” This sounds simple enough, and there is every reason to suppose that the Supreme Court originally thought it so. Indeed, at one time, qualified immunity had two prongs: an objective requirement of reasonable grounds for believing one’s conduct lawful and a subjective requirement of actual good-faith belief in the legality of that conduct. The subjective branch proved troublesome. Given the broad discovery standards in civil litigation, plaintiffs could rummage around in a defendant’s background to find evidence suggestive of malice or bad faith. Accordingly, the Supreme Court lopped off the subjective branch, leaving only the requirement of “objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” Though conceptually amputated, the resulting doctrine was justified precisely on the ground that the pared-down focus on “clearly established” rights could be easily administered, usually on pre-trial motion.